Opinion
CIVIL 3:20-CV-1198
01-11-2024
WILLIAM HOUSMAN, Petitioner, v. JOHN E. WETZEL, et al., Respondents.
Mannion Judge
REPORT AND RECOMMENDATION
Daryl F. Bloom United States Magistrate Judge
I. Introduction
William Housman, the petitioner, was convicted in 2001 of first-degree murder, kidnapping, and other related charges arising out of the murder of 18 year old Leslie White in Cumberland County, Pennsylvania, in 2000. He and his co-defendant, Beth Markman, were sentenced to death. In January of 2021, after a host of state court appeals, Housman's death sentence for the first-degree murder conviction was vacated, and he was ultimately resentenced to a term of life imprisonment without the possibility of parole.
Housman now files this instant petition for habeas corpus, challenging the state court's refusal to sever his trial from his co- defendant and the admission of his confession at trial, as well as raising several claims that his trial and appellate counsel were ineffective. (Doc. 1). After consideration, we conclude that Housman's claims are meritless. Accordingly, we recommend that this petition be denied.
II. Statement of Facts and of the Case
The factual background of the instant case was thoroughly discussed by the Pennsylvania Supreme Court in its decision affirming Housman's conviction and sentence, Commonwealth v. Housman, 986 A.2d 822 (Pa. 2009), and is summarized as follows: Housman met the victim, Leslie White, when White began working at Wal-Mart in Mechanicsburg, Pennsylvania, after she graduated high school. Id. at 826. The two began a romantic relationship, although Housman was in a relationship and lived with his co-defendant, Beth Markman. Id. Markman discovered emails between Housman and White and directed Housman to end his relationship with White. Id. Markman told several friends that she wanted to “kick White's ass,” and remarked to her probation officer that if she caught Housman cheating, she would kill the girl. Id. Housman did not end his relationship with White. Id.
After Markman became suspicious that Housman had not ended his relationship with White, she drove him to a Sheetz, where Housman called White from a payphone and falsely told her that his father had died so that White would come to his house to console him. Housman, 986 A.2d at 826. Housman told White that Markman was out of town, and White left work at Wal-Mart and drove to Housman and Markman's trailer. Id. Markman hid in a back room while Housman and White talked. Id. In her subsequent confession and trial testimony, Markman stated that she hid in the room until she heard White cry out after Housman hit her in the hand with a hammer. Id.
When Markman came out of the back room, Markman and Housman tied White up using speaker wire to tie her hands and feet, shoved a piece of red cloth in her mouth, and tied a gag around her mouth. Housman, 986 A.2d at 826-27. After stepping outside to smoke a cigarette, Housman and Markman reentered the trailer, and Markman held White down while Housman wrapped speaker wire around her neck and choked her, ultimately using both the wire and the crook of his arm, until she died. Id. at 827. White's cause of death was determined to be asphyxiation. Id. Housman and Markman wrapped White's body in a tent, stuffed the body in the back of White's Jeep, and drove the Jeep to Virginia, where Housman's family owned property. Id. They placed her body in the trunk of an abandoned car on a piece of remote land. Id. They also discarded her personal belongings, except for a camera that they later pawned. Id.
After White's parents filed a missing persons report, authorities tracked White's Jeep to Virginia, where Housman and Markman had been staying with friends after the murder. Housman, 986 A.2d at 827. Police arrived at the residence and found White's Jeep in the driveway. Id. Deputy Brian Vaughn of the Franklin County Sheriff's Office spoke with Housman and Markman separately, who both claimed that they did not know where White was located. Id. Following this encounter with law enforcement, Housman and Markman drove White's Jeep to the remote land where they had dumped her body and abandoned the Jeep there. Id. at 828. Authorities later found the Jeep and White's body, along with other evidence including Markman's DNA under White's fingernails and Housman's fingerprints on the Jeep. Id.
Police then obtained a search warrant for Markman's trailer in Pennsylvania, where they found blood and urine in the place where White was likely strangled. Housman, 986 A.2d at 828. They also found speaker wire, red fibers, a piece of red cloth, a hammer, and a stethoscope. Id. Housman and Markman were arrested one week after the murder. Id. Police obtained the camera from the pawn shop, which contained photographs taken just days after the murder showing Housman pretending to strangle Markman while Markman laughed. Id.
After their arrests, Housman and Markman were both given Miranda warnings, which they waived, and gave taped confessions to the police. Housman, 986 A.2d at 828. They both confessed to participating in White's murder but asserted that the other had threatened and forced their respective participation. Id. For his part, Housman admitted to strangling White with the speaker wire but alleged that Markman directed him to do it while threatening him with a hammer. Id. He asserted that Markman wanted to get rid of White to alleviate their relationship issues. Id. Markman, on the other hand, admitted to tying White up and gagging her while Housman threatened her with a knife, and stated that Housman strangled White with the wire and with his arm. Id. She further stated that Housman had terrorized her the night prior to the murder by forcing her to remain in the trailer naked while threatening her with a knife. Id.
Prior to trial, Housman moved to sever his trial from Markman's trial due to Markman's confession, but his motion was denied. Housman, 986 A.2d at 828-29. Subsequently, after learning that Markman intended to assert a duress defense and introduce evidence of Housman's past abuse of her, Housman moved for reconsideration of the court's order denying severance, which was also denied. Id. at 829. At trial, both Housman's and Markman's confessions were admitted with references to each other's names removed,and Markman also testified at trial while Housman did not. Id. Housman's confession indicated that Markman coerced Housman to tie White up and kill her. Id. Markman introduced evidence of abuse by Housman in the months leading up to the murder. Id. She further testified that she felt threatened by Housman, which is why she participated in the murder. Id. Ultimately, the trial court did not instruct the jury on the defense of duress. Id.
Housman's confession contained two instances of non-redaction, in which Markman's name was referenced in his confession at trial. On appeal, the Pennsylvania Supreme Court ultimately found that this violated Markman's rights under the Confrontation Clause. Commonwealth v. Markman, 916 A.2d 586, 600-05 (Pa. 2007).
Both Housman and Markman were convicted of first-degree murder and all other charges. Housman, 986 A.2d at 829. During the penalty phase, the jury found that the defendants committed the murder while in the perpetration of a felony and sentenced them both to death. Id. On appeal, Markman's convictions for murder, kidnapping, and unlawful restraint were vacated, as the court found that the two non-redactions in Housman's confession violated Bruton v. United States, 391 U.S. 123 (1968). Commonwealth v. Markman, 916 A.2d 586, 600-05 (Pa. 2007).
Housman appealed his conviction and death sentence directly to the Pennsylvania Supreme Court. Housman, 986 A.2d 822 (Pa. 2009). On appeal, Housman challenged: the sufficiency of the evidence for his first-degree murder, kidnapping, and conspiracy convictions; the trial court's denial of his motion to sever; the admission of Markman's confession against him; the trial court's failure to give an appropriate cautionary instruction regarding Markman's evidence of abuse; the admission of the forensic pathologist's testimony; the admission of his confession; and the failure to suppress evidence from the searches of the trailer. Id. The Court affirmed Housman's convictions and sentence. Id. Justice Saylor wrote a concurring opinion in which he stated he would vacate Housman's death sentence but affirm his conviction for first-degree murder, noting that while he viewed the trial court's failure to sever as substantially prejudicial, any error was harmless “[g]iven the remarkable strength of the Commonwealth's case for first-degree murder[.]” Id. at 844. Justice Baer dissented from the opinion of the Court, noting that he would vacate Housman's convictions due to the trial court's failure to sever the trials. Id. at 844-52. Housman's petition for writ of certiorari to the United States Supreme Court was denied. Housman v. Pennsylvania, 562 U.S. 881 (2010).
On June 17, 2011, Housman filed a timely petition under Pennsylvania's Post Conviction Relief Act (“PCRA”), and filed an amended, counseled petition on May 22, 2013. Housman moved for the recusal of the Cumberland County Court of Common Pleas, which was granted, and after three days of evidentiary hearings, Judge Linda Ludgate of the Berks County Court of Common Pleas granted Housman PCRA relief in the form of a new penalty trial. (PCRA Court Opinion, February 2, 2018, Doc. 4-6, Exhibit 7). In her opinion, Judge Ludgate granted PCRA relief on the grounds that Housman's counsel was ineffective for failing to present mitigating evidence at the penalty phase of trial. (Id. at 12-16). However, the court found that Housman's claims regarding the guilt phase of his trial did not warrant relief. (Id. at 17-22).
The Commonwealth appealed the court's decision granting penaltyphase relief, and Housman cross-appealed the denial of guilt-phase relief. The Pennsylvania Supreme Court upheld the decision of the PCRA court. Commonwealth v. Housman, 226 A.3d 1249 (Pa. 2020). Regarding Housman's claim that he was entitled to a new guilt-phase trial, he asserted that his trial counsel was ineffective in several respects, including the failure to object to evidence of prior bad acts, as well as hearsay evidence; the failure to properly litigate the issue of severing the trial; the failure to object to the court's jury charge on accomplice liability and conspiracy; and the failure to present evidence regarding White's cause of death from the medical examiner. Id.
The Court found that Housman's claims regarding the guilt phase were meritless. Housman, 226 A.3d at 1261-72. The Court concluded that Housman did not suffer prejudice from the admission of the bad acts and hearsay evidence, given the fact that the “overwhelming” and “properly admitted evidence that Housman lured the victim to his trailer by lying to her, strangled her with speaker wire, and discarded her body in an abandoned car, was sufficient to demonstrate to the jury Housman's capacity for violence and to support his conviction for first-degree murder.” Id. at 1262-63. The Court further found that Housman's severance claim, which he claimed warranted a new trial because the failure to sever resulted in the admission of the bad acts and hearsay evidence, failed as “this Court previously rejected this identical argument on direct appeal, concluding that any prejudice that resulted from the admission of such evidence was de minimis, and was eclipsed by his own admissions.” Id. at 1266.
Housman also claimed that his counsel was ineffective for failing to object to the jury charges on accomplice liability and conspiracy. He argued that the jury charge eliminated the Commonwealth's burden to prove that he had the specific intent to kill for first-degree murder. The Court ultimately found that Housman could not show that he was prejudiced by counsel's failure to object to the jury charge. Housman, 226 A.3d at 1268. Recounting the evidence against Housman at trial, the Court reasoned:
Housman confessed that he lured the victim to his trailer by lying to her, strangled her with speaker wire, and discarded her body in an abandoned car. Based on this evidence, it is inconceivable that the jury would have convicted Housman
merely as an accomplice to Markman, rather than as a principal in the crime.Id. The Court further noted that during the penalty phase, Housman's primary role in the murder was highlighted by the fact that the jury found Markman's participation in the murder to be relatively minor. Id. at n. 13. Accordingly, the Court found this ineffectiveness claim to be without merit. Id.
Finally, the Court considered Housman's claim that his counsel was ineffective for failing to present evidence regarding White's cause of death. Housman, 226 A.3d at 1268-69. Housman argued that White's actual cause of death was due to Markman stuffing the gag in her mouth, rather than Housman strangling her with the speaker wire and his arm. Id. The Court ultimately found that the evidence at trial was sufficient for the jury to convict Housman of first-degree murder, and thus, Housman could not show that he was prejudiced by his counsel's failure to introduce certain evidence regarding White's cause of death. Id. at 1271.
Thus, the Supreme Court ultimately found that Housman's claims regarding the guilt phase of his trial were without merit and affirmed the PCRA court's denial of relief in the form of a new trial. Housman, 226 A.3d at 1272. However, finding that Housman's counsel failed to present mitigating evidence at the penalty phase, the Court affirmed the PCRA court's decision granting Housman a new penalty phase. Id. Ultimately, the Commonwealth waived its right to proceed to a penalty phase, and on January 22, 2021, the trial court resentenced Housman to a term of life imprisonment without the possibility of parole. (Doc. 42-33 at 2).
The instant habeas corpus petition was initially filed during the pendency of Housman's state court proceedings on July 13, 2020. (Doc. 1). The matter was briefly stayed pending the outcome of Housman's state court appeals, and the petitioner filed a renewed memorandum of law in support of his petition on January 21, 2022, following his resentencing in state court. (Doc. 34). In his petition, Housman raises five grounds for relief: (1) the trial court's error in refusing to sever his and Markman's trials, as well as counsel's failure to effectively litigate the severance issue; (2) trial counsel's failure to object to the jury charge on accomplice liability and conspiracy; (3) trial counsel's failure to present evidence regarding White's cause of death; (4) a violation of Housman's Fifth Amendment right when his confession was admitted at trial; and (5) the effect of the cumulative errors resulted in prejudice.
After consideration, we conclude that Housman's claims are without merit and do not warrant habeas relief. Accordingly, we recommend that this petition be denied.
III. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
(1) Substantive Standards
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State;
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.28 U.S.C. § 2254(a) and (b).
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. Regarding these substantive standards, federal courts may “entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the Constitution or laws or treaties of the United States,” § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a “fundamental defect which inherently results in a complete miscarriage of justice” or was completely inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
(2) Deference Owed to State Courts
These same principles that limit habeas relief to errors of a constitutional dimension also require federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) “contrary to” or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(1); or (2) was “based upon an unreasonable determination of the facts,” see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made during criminal proceedings. See e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990). This principle applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state court judgment rests upon factual findings, it is well-settled that:
A state court decision based on a factual determination, ..., will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir. 2000).Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of review, federal courts may only grant habeas relief whenever “[o]ur reading of the PCRA court records convinces us that the Superior Court made an unreasonable finding of fact.” Rolan, 445 F.3d at 681.
(3) Ineffective Assistance of Counsel Claims
These general principles apply with particular force to habeas petitions that assert claims of ineffective assistance of counsel. It is undisputed that the Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to effective assistance of counsel. Under federal law, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in order to survive. Specifically, a petitioner must establish that: (1) the performance of counsel fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result of the underlying proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
Strickland first requires a petitioner to “establish first that counsel's performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to demonstrate that counsel made errors “so serious” that counsel was not functioning as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. Generally, “[t]here is a ‘strong presumption' that counsel's performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689).
Under the second Strickland prong, a petitioner also “must demonstrate that he was prejudiced by counsel's errors.” Id. This prejudice requirement compels the petitioner to show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id. Moreover,
[I]n considering whether a petitioner suffered prejudice, “[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted).
Although sometimes couched in different language, the standard for evaluating claims of ineffectiveness under Pennsylvania law is substantively consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d Cir. 2000) (“[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted Strickland and thus was not ‘contrary to' established Supreme Court precedent”). Accordingly, a federal court reviewing a claim of ineffectiveness of counsel brought in a petition under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show that the state court's adjudication of his claim was an “unreasonable application” of Strickland. Billinger v. Cameron, 2010 WL 2632286, at *4 (W.D. Pa. May 13, 2010). To prevail against this standard, a petitioner must show that the state court's decision “cannot reasonably be justified under existing Supreme Court precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court's application of federal law is challenged, “the state court's decision must be shown to be not only erroneous, but objectively unreasonable”) (internal citations and quotations omitted).
The Supreme Court has observed a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”). This doubly deferential standard of review applies with particular force to strategic judgment like those thrust upon counsel in the instant case. In this regard, the Court has held that:
“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., at 688, 104 S.Ct. 2052. “Judicial scrutiny of counsel's performance must be highly deferential,” and “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id., at 689, 104 S.Ct. 2052. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id., at 690, 104 S.Ct. 2052.Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). The deference which is owed to these strategic choices by trial counsel is great.
Therefore, in evaluating the first prong of the Strickland test, courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' ” Id. The presumption can be rebutted by showing “that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound.” Thomas v. Varner 428 F.3d 491, 499-500 (3d Cir. 2005) (footnote omitted).Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009).
It is against these legal benchmarks that we assess Housman's petition.
B. This Petition Should Be Denied.
As we have noted, Housman asserts five claims for relief, all of which in some fashion were raised before and considered by the state courts. After consideration of these claims, we conclude that the state courts' determinations were not contrary to clearly established law or based on an unreasonable determination of the facts. Accordingly, these claims do not warrant habeas relief.
1. Ground One: Trial Court's Refusal to Sever and Counsel's Ineffectiveness in Litigating the Issue
Housman first contends that the trial court erred when it refused to sever his trial from Markman's because the refusal to sever resulted in prejudicial evidence being admitted at trial. Embedded in this claim is Housman's additional assertion that his trial and appellate counsel were ineffective for failing to properly litigate this issue. Housman argues that Markman's ability to introduce evidence that he abused her prejudiced him and denied him his right to a fair trial. He further argues that his counsel was ineffective for failing to object to the evidence and for failing to request an additional limiting instruction.
Housman's claim that the trial court committed reversible error by failing to sever Housman's and Markman's trials was initially raised on direct appeal and rejected by the Pennsylvania Supreme Court. Commonwealth v. Housman, 986 A.2d 822, 833-85 (Pa. 2009). The court first noted that the trial court's decision not to sever the trials could only be overturned upon a finding of a “manifest abuse of discretion.” Id. at 834. The court then found that the trial court had not abused its discretion and instead properly exercised its discretion to deny severance where Housman had not shown that the potential for prejudice outweighed the interests served by a joint trial. Id. at 835. In making this determination, the court first noted that the defendants' defenses were not so antagonistic as to require separate trials. Id. at 834. Additionally, the court found that any potential prejudice stemming from the evidence Housman was challenging, i.e., the evidence that he abused Markman, was offset “by his own admission that he violently strangled White to death in his living room after luring her there under false pretenses, drove to Virginia with her lifeless body in her Jeep, and subsequently deposited her body in the trunk of an abandoned car.” Id. at 835 (emphasis in original). In fact, the court reasoned that this evidence alone was enough to apprise the jury of Housman's capacity for violence. Id.
Further, in response to Housman's claim that the court failed to give, and his counsel failed to argue for, a limiting instruction regarding the evidence of abuse, the court found that the trial court did, in fact, give a limiting instruction, which instructed the jury to consider the evidence of abuse only as it related to the effect it had on Markman. Housman, 986 A.2d at 836. This instruction was given prior to Markman's testimony, as well as during the penalty phase. Id. Accordingly, the court found no error. Id.
Housman also raised this claim at the PCRA level, although couched in terms of ineffective assistance of counsel. (Doc. 42-27 at 1617). In finding that this claim failed, the PCRA court noted that Housman's claim rested on the same factual basis as his claim of trial court error, which the Pennsylvania Supreme Court found to be meritless. (Id.). Accordingly, the PCRA court found that Housman's attempt to relitigate this claim as one of counsel's ineffectiveness failed because Housman had not shown underlying merit to the claim or that he was prejudiced by his counsel's alleged failure to properly litigate the severance claim. (Id. at 17).
The Supreme Court of Pennsylvania affirmed the PCRA court's denial of this claim. Housman, 226 A.3d at 1261-66. The court discussed counsel's alleged failure to properly litigate the severance issue, as well as the specific evidence that Housman alleged was improperly admitted due to the refusal to sever, including prior bad acts and hearsay evidence. Id. The court ultimately found that any prejudice Housman may have suffered from introduction of bad acts evidence “did not outweigh the overwhelming and properly-admitted evidence of his guilt,” and accordingly found that because he had not shown a reasonable probability that the outcome would have been different had this evidence been excluded, Housman's ineffectiveness claim failed. Id. at 1262-63. With respect to his claims concerning hearsay evidence, the court found that Housman waived all his claims but one because he failed to develop his argument as to these claims. Id. at 1264. As to the one properly developed claim, the court found counsel had a reasonable basis for not objecting to the alleged hearsay statement, and thus, Housman's ineffectiveness claim failed. Id. at 1264-65. Finally, as we have noted, the court found that Housman failed to demonstrate that his ineffectiveness claim had arguable merit because the substance of his severance claim was denied on direct appeal. Id. at 1266.
We cannot conclude that these state court determinations denying Housman's claims were contrary to established law or based on an unreasonable determination of the facts. The courts determined that Housman's severance claim lacked merit, finding that the trial court properly exercised its discretion to try the defendants together in a case in which the defendants both admitted to participating in the murder, and their defenses were not so inconsistent as to warrant separate trials. See Commonwealth v. Lambert, 603 A.2d 568, 573 (Pa. 1992) (“Mere fingerpointing alone-the effort to exculpate oneself by inculpating another-is insufficient to warrant a separate trial.”). Additionally, the state courts properly concluded that any evidence introduced by Markman did not outweigh the Commonwealth's evidence establishing Housman's role in the murder. As the courts explained, the record indicates that the Commonwealth presented overwhelming evidence of Housman's guilt, including his own confession in which he admitted to luring the victim to his home under false pretenses, strangling the victim with speaker wire, wrapping her body in a tent, driving her car to Virginia, and abandoning the body and the car in a remote area. Accordingly, we cannot conclude that the trial court's refusal to sever denied Housman his right to a fair trial, or that trial and appellate counsel were ineffective for failing to litigate the issue. This claim is without merit and does not warrant habeas relief.
2. Ground Two: Ineffective Assistance of Counsel - Failure to Object to the Jury Instructions for Accomplice and Conspirator Liability
Housman next argues that his counsel was ineffective for failing to object to the jury charges on accomplice liability and conspiracy. He contends that the instructions provided to the jury relieved the Commonwealth of its burden to prove that he had the specific intent to kill for first-degree murder.
The PCRA court denied this claim. (Doc. 42-27 at 18). The court noted that the case Housman relied on to support his claim that the accomplice charge was erroneous, Laird v. Horn, 404 F.3d 700 (3d Cir. 2005), was decided after Housman's trial, and that his counsel could not be deemed ineffective for failing to predict a change in the law. (Id.). The Pennsylvania Supreme Court affirmed, finding that Housman could not show that he was prejudiced by counsel's failure to object to the instructions. Housman, 226 A.3d at 1268. The court noted that even if counsel could be deemed ineffective for failing to object to the instruction, given the overwhelming evidence against Housman, it was “inconceivable that the jury would have convicted Housman merely as an accomplice to Markman, rather than as a principal in the crime,” given that “Housman confessed that he lured the victim to his trailer by lying to her, strangled her with speaker wire, and discarded her body in an abandoned car.” Id.
Here, we cannot conclude that the state courts' decisions were contrary to established law or based on an unreasonable determination of the facts. As a matter of clearly established federal law, a challenged jury instruction “ ‘may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record.” Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)). A petitioner challenging the instruction “must show both that the instruction was ambiguous and that there was ‘a reasonable likelihood' that the jury applied the instruction in a way that relieved the State of its burden to prove every element of the crime beyond a reasonable doubt.” Id. at 190-91 (quoting Estelle, 502 U.S. at 72).
The trial court first charged the jury on accomplice liability, stating in relevant part:
A defendant does not become an accomplice merely by being present at the scene or knowing about the crime. He or she is an accomplice if, with the intent ofpromoting or facilitating commission of the crime, he or she solicits, commands, requests, encourages or agrees with the other person in planning or committing it.(Doc. 42-14 at 2-3) (emphasis added). Immediately thereafter, the court instructed the jury on the charge of homicide, stating in relevant part:
First degree murder is a murder in which the killer has the specific intent to kill. You may find a defendant guilty of first degree murder if you are satisfied the following three elements have been proven beyond a reasonable doubt:
One, that Leslie White is dead. Two, that a defendant killed her. Three, that a defendant did so with specific intent to kill and with malice.
Those are the elements out of the Crimes Code, ladies and gentlemen. I tell you that a person has a specific intent to kill if he or she has a fully formed intent to kill and is conscious of his or her own intention.
As my earlier definition of malice indicates, a killing by a person who has the specific intent to kill is killing with malice. Stated differently, a killing is with specific intent to kill if it is willful, deliberate and premeditated.(Id. at 4).
In the instant case, the Pennsylvania Supreme Court concluded that there was not a reasonable likelihood that the jury misapplied the instructions and convicted Housman as an accomplice without finding that he had the specific intent to kill for first-degree murder. Housman, 226 A.3d at 1268. Rather, the court concluded that given the trial court record and the evidence of Housman's specific intent to kill White, including Housman's confession, it was “inconceivable that the jury would have convicted Housman merely as an accomplice to Markman, rather than as a principal in the crime.” Id. Accordingly, the court concluded that Housman had not shown prejudice from counsel's failure to object to the instruction. Id.
We cannot conclude that this determination was contrary to law or based on an unreasonable determination of the facts. Giving deference to the state court findings, as we must, the state court record was replete with evidence of Housman's specific intent to kill White, including Housman's confession that he lured White to his home under false pretenses, strangled her with a wire, wrapped her body in a tent and drove her body to Virginia, where he dumped the body in an abandoned car on a remote plot of land. Further, as the court noted, at the penalty phase, Housman's principal role in the murder was highlighted by the fact that the jury found Markman's participation in the murder to be relatively minor. See Housman, 226 A.3d at 1268 n. 13.
Thus, even if counsel could be deemed ineffective for failing to object to the jury charge, we cannot conclude that there is a reasonable likelihood that the jury convicted Housman merely as an accomplice to the murder without finding that he had the specific intent to kill. Rather, we agree with the state court that Housman cannot show prejudice; that is, that there is a reasonable probability that the outcome of his trial would have been different. Accordingly, this claim affords Housman no relief.
3. Ground Three: Ineffective Assistance of Counsel - Medical Examiner Evidence
Housman next contends that his counsel was ineffective for failing to introduce evidence from the medical examiner that White's death was caused by the gag in her mouth, rather than being choked with the wire and Housman's arm. He further asserts that the prosecution committed misconduct when it elicited misleading testimony with respect to White's cause of death at trial and failed to correct it.
Housman raised this claim of counsel's alleged ineffectiveness at the PCRA level, and the PCRA court rejected this claim. (Doc. 42-27 at 17). The court noted that at the evidentiary hearing, Housman's counsel testified that he had a strategic basis when he did not cross examine Dr. Venuti on this issue. (Id.). Further, the court reasoned that even if counsel could be deemed ineffective for failing to present such evidence, Housman was not able to show that the outcome of trial likely would have been different. (Id.). The Pennsylvania Supreme Court agreed. Housman, 226 A.3d at 1271. The court first recognized trial counsel's explanation for failing to cross examine Dr. Venuti on the issue, noting counsel's testimony that the evidence showed both defendants were in the process of causing White's death, and he did not see an advantage to nitpicking the issue. Id. The court further highlighted Dr. Venuti's testimony at trial, which indicated that the wire used by Housman “around the victim's neck could have forced the gag further back into the victim's mouth, obstructing her airway[,]” Id. (quoting N.T. Trial, 10/29/01, at 540), contradicted Housman's contention that she testified it was the gag that obstructed White's airway. Finally, the court reasoned that even if counsel could be deemed ineffective, given the evidence of Housman's specific intent to kill White, he could not show that he was prejudiced by counsel's actions. Id.
We cannot conclude that these determinations were contrary to law or based on an unreasonable determination of the facts. The evidence presented at trial, including Dr. Venuti's testimony, established that White died from asphyxiation. The evidence further established that both Markman and Housman played a part in cutting off White's airway- Markman by placing a gag in White's mouth, and Housman by pulling up on White's neck with the speaker wire, forcing the gag back further into White's mouth. Counsel testified that he did not see an advantage to nitpicking the issue, given that the evidence indicated both defendants played a role in causing White's death. Accordingly, we agree with the state courts that counsel had a reasonable basis for not cross-examining Dr. Venuti on the issue, and that in any event, Housman was not prejudiced because the evidence was sufficient to convict him of first-degree murder.
Housman further claims that his counsel should have used a memorandum by Agent Oliver of the Virginia State Police, which recounted a discussion with Dr. Venuti regarding the lack of ligature marks on White's neck, to cross examine Dr. Venuti and to rebut the allegedly misleading testimony given by Agent Lester at trial that indicated White had ligature marks on her neck from the speaker wire. He contends that Agent Lester's testimony was misleading because the memorandum indicated that Dr. Venuti reported no ligature marks on White's neck, but that Agent Lester testified that White had a mark on her neck.
To the extent Housman is raising a claim of prosecutorial misconduct, this claim, even if properly exhausted, is without merit. In order to obtain federal habeas relief from a claim of prosecutorial misconduct, the petitioner must show that the alleged misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Here, as the Pennsylvania Supreme Court noted, even absent the testimony of Agent Lester regarding ligature marks on White's neck or cross examination of Dr. Venuti regarding the ligature marks, “there was sufficient evidence that Housman's unchallenged acts constituted first-degree murder.” Housman, 226 A.3d at 1271. This evidence, as we have explained, included Housman's own confession that he wrapped speaker wire around White's neck and strangled her. Accordingly, we cannot conclude that the exchange between the prosecutor and Agent Lester constituted prosecutorial misconduct that would warrant habeas relief.
4. Ground Four: Miranda Violation
Housman also challenges the admissibility of his confession to the Virginia State Police, contending that he did not waive his Miranda rights, and that if he did waive his rights, any waiver was not knowing and voluntary. Housman asserts that prior to giving the police his inculpatory statement, he invoked his right to counsel and to remain silent. He further argues that any waiver that occurred after he began speaking to the police was not knowing or voluntary because he did not understand what constituted a waiver.
Housman asserted this claim in his direct appeal to the Pennsylvania Supreme Court, albeit in a somewhat different fashion. Housman 986 A.2d at 839-40. On direct appeal, Housman claimed that he was denied his right to counsel because he was being questioned about White's murder, which was related to his larceny arrest. Id. at 840. In denying this claim, the Pennsylvania Supreme Court found that Housman “received Miranda warnings and waived them before making incriminating statements. Thus, there was no Miranda violation warranting suppression of his statements to police.” Id.
We cannot conclude that this decision was an unreasonable application of the law or based on an unreasonable determination of the facts. A review of Housman's recorded confession indicates that the officers informed Housman several times that if he did not wish to speak to the officers, they would leave the room. (Doc. 4 at 6, 8, 10). They advised him of his right to remain silent and his right to counsel, as well as informing him that if he waived his rights, he could re-invoke at any time, and they would stop questioning him. (Id. at 8). Housman signed a waiver of his Miranda rights and subsequently gave a statement to the officers in which he confessed to participating in White's murder with Markman. Accordingly, this claim does not warrant habeas relief.
5. Ground Five: Cumulative Errors
Finally, Housman asserts that the cumulative errors of the trial court and his trial and appellate counsel warrant habeas relief. However, we have concluded that Housman's claims regarding his counsel's ineffectiveness and the trial court's errors to be without merit. See Aponte v. Eckard, 2016 WL 8201308, at *20 (E.D. Pa. June 3, 2016) (“The cumulative error doctrine requires the existence of ‘errors' to aggregate. Absent such errors by counsel, the cumulative error doctrine does not apply”). Accordingly, this claim of cumulative errors does not entitle Housman to habeas relief.
Finally, we have carefully considered whether Housman is entitled to a certificate of appealability under 28 U.S.C. § 2253. As the Supreme Court observed “the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, (2000). Here, we conclude that Housman has made no such showing, nor can he in light of the state court findings and clear evidence of his factual guilt. Accordingly, a certificate of appealability should not issue in this case. IV. Recommendation
Accordingly, for the foregoing reasons, upon consideration of this petition for writ of habeas corpus, IT IS RECOMMENDED that the petition be DENIED, and that a certificate of appealability should not issue.
The petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.